Crafted carefully, state laws can be written that would allow Texas to crack down on undocumented immigrants and illegal border crossers without running afoul of the U.S. Constitution, a state attorney told lawmakers recently.
In at least one case, he said, it’s already happened.
Protesters block a rear entrance to Texas Governor Rick Perry’s office on the second floor protesting HB12 the so-called “sanctuary cities” bill winding its way through the Senate on May 25, 2011.
The guidance comes as Republican lawmakers continue accusing the Obama administration of failing to secure the border, citing the recent influx of undocumented immigrants from Central America into the Rio Grande Valley. The issue was thrust back into the spotlight on Tuesday when Gov. Greg Abbott ordered the Texas National Guard to stay in the Rio Grande Valley despite earlier plans to end its deployment this month.
During a House State Affairs committee hearing last week on border security and immigration, Texas Deputy Attorney General Brantley Starr told lawmakers they have more options than they might think to flex state legal muscle in the traditionally federal realm of immigration enforcement.
Although the U.S. Supreme Court has ruled that “foreign policy and related matters, such as immigration, are one of the few enumerated powers the federal government has,” Starr said states do have some room to work.
“You do have the ability to create state-level offenses that have an immigration element to them as long as they are sufficiently unique,” he said, citing House Bill 11, the Legislature’s 2015 omnibus border security bill.
The bill, signed by Abbott in June, made it a state felony to smuggle someone into the country for pay. Starr said he believes the bill would stand up to a court challenge on Constitutional grounds if one were brought. (There is no current challenge, the attorney general’s office confirmed.)
“There were new state-level elements to that offense [in] that you’re taking money in exchange for bringing someone across the border illegally,” he said. “And the addition of the new state-level elements to that offense made it sufficiently unique.”
The new laws are already helping state police apprehend alleged criminals that federal agents might let go, Texas Department of Public Safety Director Steve McCraw told the committee.
Border Patrol agents and state troopers recently came across a stash house for undocumented immigrants, for instance, where eight people, including two pregnant women, were being held against their will, McGraw said. Because the state had jurisdiction in its own right, state police could make the arrests.
“With Border Patrol and the U.S. Attorney’s office, it was too low under their threshold,” he said. “[The state] can go to the district attorney’s office and say, ‘Wait a minute,’ and the district attorney took that offense.”
Starr also said he believes state lawmakers can pass a bill outlawing “sanctuary cities” that would withstand a court challenge. The Supreme Court upheld one of four provisions of a controversial Arizona law, SB 1070, dubbed the “show me your papers” bill, allowing police to ask a person if they were in the country legally, Starr said.
But it didn’t take away the power of the federal government to deport the person, which is why it wasn’t struck down.
“That law survived because it could be implemented in a way that ultimately left discretion to the federal government to detain that person and remove them from the country,” he said.
Starr said that an essential element to a Texas “sanctuary cities” bill would be carving out an exception for school districts because the Supreme Court has already ruled that students cannot be questioned about their immigration status. The school exception was included in the state’s 2011 proposal that failed to make it to former Gov. Rick Perry’s desk.
Jacqueline Watson, the president of the American Immigration Lawyers Association’s Texas chapter, warned the committee the issue isn’t as simple as the state made it seem.
“This opinion does not foreclose other pre-emption and constitutional challenges to the law,” she said.
She said the Arizona bill shouldn’t be seen as a blueprint or viewed as a license for officers to stop a person solely on immigration matters.
“A state officer is required to make reasonable attempts to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion believes that the person is an alien and is unlawfully present in the United States,” she said.
ObamaCare was not written as a tax. Only the House of Representatives in Congress can write a law that creates revenue through a tax, per Article 1 Section 7, of the US Constitution. ObamaCare was presented as a penalty. Thereby rendering it null and void.
We here at PushBackNow.com & USDefenseLeague.com have been effusively attempting to educate the American populace of the factual truth regarding the legality and Constitutionality of: ObamaCare aka The Affordable Care Act. It is NOT in any way, shape or form the “Law of The Land!”
Because ONLY The US House of Congress can initiate a law, a tax law, a bill or a resolution that demands money from the American People. The bill or law cannot be re-written from a penalty to a tax, created after the fact in SCOTUS, in the midst of a Constitutional review in the highest court of the land: The United States Supreme Court. As powerful of a court as they are, they cannot create, initiate, birth, write, draft, re-write, implement or mandate ANY laws, bills, taxes, resolutions or Constitutional Amendments period. They can ONLY review the Constitutionality of a case before them!
Again, ObamaCare was not written as a tax. Only the House of Representatives in Congress can write a law that creates revenue through a tax. ObamaCare was presented as a penalty, thereby rendering all Executive Branch, Legislative Branch and Judicial Branch offspring, clones, twins and any variations pertaining to ObamaCare aka ACA (Affordable Care Act) null and void. And Here’s proof… One last thing, after you read it, share it, teach it and preach it. This is Truth, and Truth always prevails.
Article 1. Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. http://www.archives.gov/exhibits/charters/constitution_transcript.html#1.7
This should be the end of the conversation, but alas the proponents of the anti-ethical and burdensome ObamaCare Socialist One Payer Anti-American dream repeat their false mantra that it is the “law of the land” so deal with it. It is not. You deal with that! Liberals and radical Democrats and, unfortunately even some RINOs, have similar dreams for illegals to be supported by the ‘one-percenters’ and middle-income Americans amidst this great Republic of The United States of America. The Affordable Care Act’s weight will be shouldered by the healthiest and hardest working and doled out indiscriminately. The method of administering ObamaCare via its ‘Marketplace’ is another discussion entirely. And the means, using the IRS The Internal Revenue Service to regulate after such partisan assaults would be laughable if it weren’t so dangerous! The facts are facts and ObamaCare/Affordable Care Act is a reprehensible illegal mandate pushed onto the American people via unauthorized, illegitimate and UN-Constitutional means. It is therefore NULLand VOID. Take that Mr. President, Democratic Congress, RINOs, et al, or, submit yourselves unto the legislative mulch you created and languish thusly by applying ObamaCare to yourselves at once! We The People will stand up against this, and every unlawful mandate and protect our Republic. Now let’s hear from another Wide Awake Conservative voice. ~-PBN read more
Senate Majority Leader Harry Reid (D-NV) answers a reporters questions after the Democrat’s weekly policy luncheon, at the US Capitol, January 29, 2013, in Washington, DC. The leaders discussed pending immigration reform, bipartisan issues and the recent Supreme Court ruling on President Obama’s recess appointments. UPI/Mike Theiler
Even the liberal leaning FactCheck.org called out Senator Harry Reid for being doubly wrong in his claim that Congress has already cut $2.6 trillion from projected future deficits by reducing non-defense programs alone.
The site explained that not only did the legislation he referred to applied to both security and non-security spending, but that a considerable part of the deficit reduction came from tax increases and not spending cuts.
The worst part? The senator made the same erroneous statement twice. Reid made the affirmations on ABC’s “This Week” on Feb. 3rd, were he also added that further deficit reduction should include more tax increases and cuts in military spending.
“The American people need to understand that it’s not as if we’ve done nothing for the debt. $2.6 trillion, $2.6 trillion already we’ve made in cuts. And all those cuts have come from non-defense programs. We need to keep our eye on the prize and continue doing something about spending, but I think that what we need to do is do some of the things that Mitt Romney talked about. He said there’s some low-hanging fruit; there are a lot of tax loopholes that should be closed. I agree with him. We haven’t done that.,” he said.
Later on, after host George Stephanopoulos probed the Senator on the issue, he repeated his claim saying,
“I repeat: $2.6 trillion already, all coming from non-defense. If we’re going to have a sequester, defense is going to have to do their share”
According to FactCheck.org Reid inflated the $2.6 trillion figure for the show. The senator referred to the same figure as being $100 billion less, three days before on the Senate Floor.
ALBANY, New York (Reuters) – Two gun owners have filed a lawsuit seeking to overturn New York state’s sweeping new gun-control law, enacted after the mass shooting at the Sandy Hook elementary school in Connecticut.
The suit, filed on Tuesday in state Supreme Court in Erie County, is apparently the first to challenge the crackdown on firearms championed by Governor Andrew Cuomo.
Attorney James Tresmond, who is representing the gun owners, asked state Supreme Court JusticeDiane Devlin to enjoin the law pending the state’s response.
The law was passed on January 15, making New York the first state to enact tougher gun regulations after a gunman shot dead 20 students and six staff members last month at the Sandy Hook school in Newtown, Connecticut.
The law bans assault weapons and magazines that hold more than seven rounds of ammunition, requires gun owners to register most guns with the state and requires universal background checks, among other provisions.
The law also authorizes law enforcement to confiscate guns owned by a mentally ill person, if a mental health professional believes the person poses a threat to himself or others.
“A number of constitutional rights were just tossed aside here,” Tresmond said on Wednesday.
Under the law, the failure to register a gun is a class E felony. The suit claims that the provision violates the Fifth Amendment right against self-incrimination, because it could force a gun owner who registers late to effectively admit to committing a crime.
The U.S. Supreme Court in 1968 ruled in Haynes v. United States that felons and others who are prohibited from possessing guns could not be forced to incriminate themselves through registration.
Tresmond said the law also violates the Fifth Amendment’s ban on the taking of private property by the government. The law requires people who own high-capacity magazines to either sell them or surrender them to the state.
The lawsuit lists as defendants Cuomo, Assembly Speaker Sheldon Silver, Senate majority leaders Dean Skelos and Jeff Klein, and State Police Superintendent Joseph D’Amico.
At a press conference after the lawsuit was filed on Wednesday, Cuomo, a Democrat, said he expected legal challenges to the new law and that he believed courts would uphold it.
“The more (people) understand the law and the more they hear about the law, the better they are going to feel because it has nothing to do with the legitimate ownership of a gun,” he said.
On Tuesday, the New York State Rifle & Pistol Association filed a notice of claim with the state, which gives the group 90 days to file a suit challenging the gun law. The association, which is the National Rifle Association’s affiliate in New York, said in its filing that the law violates the Second and Fifth amendments, the Commerce Clause and constitutional rights to privacy.
The case is Richard Dywinski v. New York, New York State Supreme Court, Erie County No. 290-2013.
(Reporting by Daniel Wiessner; Editing by Tom Brown)
Publisher’s Note: 40 years and over 55,000,000 life ending murders aka “abortions” ago Roe vs Wade and Doe vs Bolton both became victims of fraud. An anniversary should be a joyous celebration, sadly they are not always. It is not a celebratory memory, but it does mark the anniversary of tens of millions of murders of the most precious of us. This marker is a reminder of how vile and evil the blood lusting liberal left are. Monsters do exist. Liberals have made murder of the most innocent “legal” by fraud and lies. You will find at the center of liberal’s evil goals, two pawns, two innocent pro life women who never sought abortions.
It is also the Anniversary of a continuing Farce & Denigration of Our US Constitution and the manipulation of our Supreme Court Judicial System.
How and why?
Due to two false precedents, illegal ones at that. It is indeed a historical fact, though incredulously still not a widely disseminated one, that both the plaintiffs in Roe vs Wade and Doe vs Bolton proceeded on with their pregnancies and gave birth to their babies prior to the courts rulings on their matters making the Supreme Court’s decisions irrelevant and moot. In addition, the plaintiffs’ attorney(s) in both cases allegedly used their names and previous conditions (pregnancies) to obtain standing without their knowledge or consents. “Roe” didn’t learn of the case’s outcome until reading it two years later in the newspaper and “Doe” had no knowledge that a case had even been filed, heard and ruled on, using her name! They are both Pro-Life and are Proponents of the Right to Life for ALL unborn children.
Roe’s attorney Coffee and Weddington never had her appear in court or for that matter explain that an abortion would end the life of the unborn baby. Norma McCorvey (Roe) was duped. The story of Sandra Cano (Mary Doe) here.
Mary Doe was Sandra Cano she says, “Little did I know, going to the Legal Aid was going to result in being a Plaintiff in abortion, which is something I’ve never been for, I’ve been against, I never sought an abortion, never sought to be a plaintiff in this case. I was in the dark about it for a long, long time. I think the public knows more about the case than I do. I was never a participant.”
The Supreme Court’s ruling in both cases were based upon cases which no longer existed and which were brought about via fraudulent and dubious means. Both cases rulings resulted in the violation of the most basic Constitutional Right of any future child’s right to exist, not for those two children but for the millions who never had a chance to be heard. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Charters of Freedom here.If you’re pregnant or know someone who is and are thinking about an abortion, do some research, talk to some people, we hope these links will help, may God bless you.-PBN
Good afternoon, Chairman Brownback and Senator Feingold, and thank you very much for inviting me to testify before you and your subcommittee on this important subject.
I am Edward Whelan, president of the Ethics and Public Policy Center. The Ethics and Public Policy Center is a think tank that for three decades has been dedicated to exploring and explaining how the Judeo-Christian moral tradition and this country’s foundational principles ought to inform and shape public policy on critical issues.
The Ethics and Public Policy Center’s program on The Constitution, the Courts, and the Culture, which I direct, explores the competing conceptions of the role of the courts in our political system. This program focuses, in particular, on what is at stake for American culture writ large—for the ability of the American people to function fully as citizens, to engage in responsible self-government, and to maintain the “indispensable supports” of “political prosperity” that George Washington (and other Founders) understood “religion and morality” to be.
1. Why re-examine Roe v. Wade?
Why are we here today addressing a case that the Supreme Court decided 32 years ago, that it ratified 13 years ago, and that America’s cultural elites overwhelmingly embrace? The answer, I would submit, is twofold.
First, Roe v. Wade marks the second time in American history that the Supreme Court has invoked “substantive due process” to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court’s infamous 1857 decision in the Dred Scott case (Dred Scott v. Sandford, 60 U.S. 393 (1857)). There, the Court held that the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, could not constitutionally be applied to persons who brought their slaves into free territory. Such a prohibition, the Court nakedly asserted, “could hardly be dignified with the name of due process.” Id. at 450. Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age. Chief Justice Taney and his concurring colleagues thought that they were conclusively resolving the issue of slavery. Instead, they only made all the more inevitable the Civil War that erupted four years later.
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language inRoe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roefuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roedisenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
So long as Americans remain Americans—so long, that is, as they remain faithful to the foundational principles of this country—I believe that the American body politic will never accept Roe.
The second reason to examine Roe is the ongoing confusion that somehow surrounds the decision. Leading political and media figures, deliberately or otherwise, routinely misrepresent and understate the radical nature of the abortion regime that the Court imposed in Roe. And, conversely, they distort and exaggerate the consequences of reversing Roe and of restoring to the American people the power to determine abortion policy in their respective States. The more that Americans understand Roe, the more they regard it as illegitimate.
Reasonable people of good will with differing values or with varying prudential assessments of the practical effect of protective abortion laws may come to a variety of conclusions on what abortion policy ought to be in the many diverse states of this great nation. But, I respectfully submit, it is well past time for all Americans, no matter what their views on abortion, to recognize that the Court-imposed abortion regime should be dismantled and the issue of abortion should be returned to its rightful place in the democratic political process.
2. Roe v. Wade
In Roe v. Wade, 410 U.S. 113 (1973), the Court addressed the constitutionality of a Texas statute, “typical of those that have been in effect in many States for approximately a century,” that made abortion a crime except where “procured or attempted by medical advice for the purpose of saving the life of the mother.” Id. at 116, 118.The seven-Justice majority, in an opinion by Justice Blackmun, ruled that the Texas statute violated the Due Process Clause of the Fourteenth Amendment (which provides that no state shall “deprive any person of life, liberty, or property, without due process of law”). The Court ruled that the Due Process Clause requires an abortion regime that comports with these requirements that the Court composed:
“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
“(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
“(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 164-165.
Merely describing Roe virtually suffices to refute its legitimacy. One of the two dissenters, Justice Byron White—who was appointed by President Kennedy—accurately observed that Blackmun’s opinion was “an exercise of raw judicial power” and “an improvident and extravagant exercise of the power of judicial review.” 410 U.S. at 222 (combined dissent from Roe and Doe v. Bolton).
Here are typical criticisms of Roe—from liberals who supporta right to abortion:
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935-937 (1973).
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973).
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years sinceRoe’s announcement, no one has produced a convincing defense of Roe on its own terms.” Edward Lazarus, The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, Oct. 3, 2002 (at http://writ.corporate.findlaw.com/lazarus/20021003.html). (Mr. Lazarus was a law clerk to Blackmun and describes himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather.”)
“[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.” Archibald Cox,The Role of the Supreme Court in American Government 113-114 (1976).
Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.” Benjamin Wittes, Letting Go of Roe, The Atlantic Monthly, Jan/Feb 2005.
The defects of Justice Blackmun’s majority opinion in Roeare manifest and legion. A brief review of lowlights is nonetheless warranted:
Blackmun’s rambling world-history tour of “man’s attitudes toward the abortion procedure over the centuries,” 410 U.S. at 117, wanders from the ancient Persian Empire to the position of the American Public Health Association in 1970 and of the American Bar Association in 1972. Yet, even apart from how unreliable and misleading Blackmun’s tour has been shown to be, it fails to address squarely the most relevant history—the state of abortion regulation at the time of the adoption of the Fourteenth Amendment in 1868. As then-Justice Rehnquist’s dissent points out, as of 1868 “there were at least 36 laws enacted by state or territorial legislatures limiting abortion,” including the Texas statute the Court struck down in Roe. See 410 U.S. at 174-175 & n. 1.
Blackmun’s opinion modestly states:
“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” 410 U.S. at 159.
But while feigning not to decide the question of when a human life begins—a question that is in fact rather simple as a matter of biology—the Court in essence ruled illegitimate any legislative determination that unborn human beings are deserving of protection from abortion.
A critical step in Roe is the bare assertion, unsupported by any argument or authority, that the “right of privacy” protected by the Fourteenth Amendment “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S. at 153.
In explaining the abortion regime that he was inventing, Blackmun stated:
“This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.” 410 U.S. at 165.
This language openly reveals that Roe is a policymaker’s balancing of considerations, not an authentic judicial interpretation of the Constitution.
3. Doe v. Bolton
The same day that the Court decided Roe, it rendered its decision in Doe v. Bolton, 410 U.S. 179 (1973). As the Court said in Roe, Roe and Doe “are to be read together.” Roe,410 U.S. at 165. Doe presented the question whether Georgia’s abortion legislation, patterned on the American Law Institute’s model legislation, was constitutional. 410 U.S. at 181-182. Among other things, the Georgia statute provided that an abortion shall not be criminal when performed by a physician “based upon his best clinical judgment that an abortion is necessary because [a] continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health.” Id. at 183. In the course of upholding this provision against a challenge that it was unconstitutionally vague, Justice Blackmun’s majority opinion determined that the
“medical judgment [as to health] may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.” Id. at 192.
It is not entirely clear what Blackmun’s garbled discussion is intended to mean. The predominant assumption appears to be that Blackmun was construing the Georgia statute’s health exception in accord with what he regarded as its natural legal meaning (or, alternatively, in a way that he thought necessary to salvage it from invalidation on vagueness grounds). Under this reading, the authority thatRoe purports to confer on states to “regulate, and even proscribe, abortion” after viability is subject to the loophole ofDoe’s health exception. See, e.g., Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 209 (6th Cir. 1997)(“Roe’s prohibition on state regulation when an abortion is necessary for the ‘preservation of the life or health of the mother’ must be read in the context of the concept of health discussed in Doe” (internal citation omitted)). Because the practical meaning of this loophole would appear to be entirely at the discretion of the abortionist, it would swallow any general post-viability prohibition against abortion.
Under an alternative reading, Blackmun’s language should be understood merely as construing the Georgia statute and not as speaking, directly or indirectly, to the meaning of the post-viability health exception in Roe. See, e.g., Voinovich v. Women’s Medical Professional Corp., 523 U.S. 1036, 1039 (1998) (opinion of Thomas, joined by Rehnquist and Scalia, dissenting from the denial of certiorari) (“Our conclusion that the statutory phrase in Doe was not vague because it included emotional and psychological considerations in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law. Doe simply did not address that question.” (emphasis in original)).
4. Myths about Roe
Myths about Roe abound, and I will not strive to dispel all of them here. One set of myths dramatically understates the radical nature of the abortion regime that Roe invented and imposed on the entire country. Roe is often said, for example, merely to have created a constitutional right to abortion during the first three months of pregnancy (or the first trimester). Nothing in Roe remotely supports such a characterization.
A more elementary confusion is reflected in the commonplace assertion that Roe “legalized” abortion. At one level, this proposition is true, but it completely obscures the fact that the Court did not merely legalize abortion—itconstitutionalized abortion. In other words, the American people, acting through their state legislators, had the constitutional authority before Roe to make abortion policy. (Some States had legalized abortion, and others were in the process of liberalizing their abortion laws.) Roe deprived the American people of this authority.
The assertion that Roe “legalized” abortion also bears on a surprisingly widespread misunderstanding of the effect of a Supreme Court reversal of Roe. Many otherwise well-informed people seem to think that a reversal of Roe would mean that abortion would thereby be illegal nationwide. But of course a reversal of Roe would merely restore to the people of the States their constitutional authority to establish—and to revise over time—the abortion laws and policies for their respective States.
This confusion about what reversing Roe means is also closely related to confusion, or deliberate obfuscation, over what it means for a Supreme Court Justice to be opposed toRoe. In particular, such a Justice is often mislabeled “pro-life.” But Justices like Rehnquist, White, Scalia, and Thomas who have recognized that the Constitution does not speak to the question of abortion take a position that is entirely neutral on the substance of America’s abortion laws. Their modest point concerns process: abortion policy is to be made through the political processes, not by the courts. These Justices do not adopt a “pro-life” reading of the Due Process Clause under which permissive abortion laws would themselves be unconstitutional.
5. Planned Parenthood v. Casey
In 1992, the Supreme Court seemed ready to reverse Roeand to end its unconstitutional usurpation of the political processes on the abortion question. Instead, in Planned Parenthood v. Casey, 505 U.S. 833 (1992),Justices O’Connor, Kennedy, and Souter combined to produce a joint majority opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the sterile incoherence of Blackmun’s opinion inRoe.
In Casey, the Court relied on the combined force of (a) its “explication of individual liberty” protected by the Due Process Clause and (b) staredecisis to reaffirm what it described as (c) the “central holding” of Roe. 505 U.S. at 853. Each of these elements warrants scrutiny.
The core of the Court’s explanation of the liberty interests protected by the Due Process Clause is its declaration, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 505 U.S. at 851. This lofty New Age rhetoric should not conceal the shell game that the Court is playing. What the Court’s declaration really means is that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.
Even with this infinitely elastic standard, the authors of the joint opinion are not ready to assert that Roe was correctly decided. Instead, they rest their reaffirmation of Roe on an understanding of stare decisis, and of the role of the Court generally, that betrays a remarkably profound confusion. I cannot quote the full discussion, but these passages are all too typical:
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roeand those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” 505 U.S. at 866-867.
“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” 505 U.S. at 868.
“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.” 505 U.S. at 868.
It is probably not possible to improve on Justice Scalia’s devastating responses to the joint opinion’s bizarre assertions:
“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v.Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.” 505 U.S. at 995.
“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.” 505 U.S. at 995-996.
“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders.
‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.
“Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration … with the more democratic views of a more humble man:
‘[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.’ A. Lincoln, First Inaugural Address (Mar. 4, 1861).” 505 U.S. at 996-997.
While abandoning Roe’s trimester framework, the Caseyjoint opinion then reaffirmed what it characterized as Roe’s central holding: “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” 505 U.S. at 879. It also stated that it reaffirmed Roe’s holding (which, as discussed above, apparently was to be read with Doe’s malleable definition of health) that even after viability abortion must be available “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. In addition, it adopted a subjective and amorphous “undue burden” standard for assessing incidential abortion regulations before viability. Id. at 878.
6. Stenberg v. Carhart
The Supreme Court’s decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, provides special insight into the Court’s abortion regime. That case presented the question of the constitutionality of Nebraska’s ban on partial-birth abortion.
This case crossed my mind five months ago as my daughter was being born and her head was first starting to emerge.
Pardon me as I briefly describe what partial-birth abortion is: It’s a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs a pair of scissors into the head, sucks out the baby’s brains, collapses the skull, and delivers the dead baby.
According to estimates cited by the Court, up to 5000 partial-birth abortions are done every year in this much-blessed country.
In the face of a division of opinion among doctors over whether partial-birth abortion is sometimes safer than other methods of abortion, the Court, by a 5-4 vote, deferred to the view of those who maintained that it sometimes is and invalidated the Nebraska statute banning it.
I don’t have much else to say about this case. I don’t dispute at all that its result can reasonably be thought to be dictated by Roe and Casey. And I certainly don’t contend that what partial-birth abortion yields—a dead baby—is any different from what other methods of abortion yield.
I would instead merely submit that this case ought to make manifest to any but the most jaded conscience the sheer barbarity being done in the name of the Constitution in a country dedicated—at its founding, at least—to the self-evident truth that all human beings “are endowed by their Creator” with an unalienable right to life.
Despite the fact that the abortion issue was being worked out state-by-state, the Supreme Court purported to resolve the abortion issue, once and for all and on a nationwide basis, in its 1973 decision in Roe. Instead, as Justice Scalia has correctly observed, the Court “fanned into life an issue that has inflamed our national politics” ever since. In 1992, the five-Justice majority in Casey “call[ed] the contending sides [on abortion] to end their national division by accepting” what it implausibly claimed was “a common mandate rooted in the Constitution.” Thirteen years later, the abortion issue remains as contentious and divisive as ever.
As Justice Scalia suggested in his dissent in Casey, Chief Justice Taney surely believed that his Dred Scott opinion would resolve, once and for all, the slavery question. But, Scalia continued:
“It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be ‘speedily and finally settled’ by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be.… Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
“We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” 505 U.S. at 1002.
As increasing numbers of observers across the political spectrum are coming to recognize, Justice Scalia’s prescription in Casey remains entirely sound, both as a matter of constitutional law and of judicial statesmanship. If the American people are going to be permitted to exercise their authority as citizens, then all Americans, whatever their views on abortion, should recognize that the Supreme Court’s unconstitutional power grab on this issue must end and that the political issue of whether and how to regulate abortions should be returned where it belongs—to the people and to the political processes in the states.
May The Lord Jesus Christ Richly Bless Charlie Daniels and those whom he loves. He is a True American Patriot. -PBN
When the Supreme Court, or any other court for that matter, makes a ruling in a case they first look for precedent, in other words to see if there has been a court decision rendered on the same subject in the past and usually defer to the old decision in ruling on the case.
The greatest teacher in life is experience; it only takes one time of burning your fingers on a hot stove to know that you never want to touch another one.
The next greatest teacher is observation, paying attention to someone else’s experiences and profiting from their wins and losses, trials and errors.
In my generation I have seen the rise and fall of fascism, communism, different experiments in socialism and the kind of downright social and fiscal foolishness that leads to what has recently happened in Greece.
There is an old saying that those who do not learn from history are doomed to repeat it.
There is at this time a huge debate in our nation about the private ownership of firearms. The president and the anti-gun crowd claim they do not want to do away with private ownership, that they only want to modify the existing laws having to do with assault weapons -which can be construed as anything in your gun cabinet of any heavy caliber – and clips for semiautomatic weapons holding more than 10 bullets.
I submit to you that what is going on here is the first assault on private gun ownership
They will take what ever they can get now and continue to chip away until all you can legally own to protect your family with is a baseball bat.
Did you know that one of the major reasons the Japanese did not attempt to land troops on the American coast during World War Two is because they knew that Americans owned guns and would fight tooth and nail for every inch of shore line.
Hitler disarmed Germany, Stalin disarmed Russia, and Mao disarmed China.
The mainstream media is quick to report any kind of gun violence but omit the stories where lives have been saved by legally owned guns in the hands of good citizens and the stories are many and varied all across the country.
Let’s look at some precedent:
In 1997, many Aussies were forced to give up their privately owned firearms. Over 630,000 were turned in to be destroyed as part of a “buyback plan” by the Australian government. Total cost of the buyback? $500,000,000.
One year later, here were the results:
Homicides nationwide: Up 6.2%
Assaults nationwide: Up 9.6%
Armed robberies nationwide: Up 44%
In the state of Victoria alone, homicides with firearms went up 300%.
Five years later, a “continued modest decline” in homicides was noted, but what has gone up in the land down under over the past few years is the number of assaults. Overall, assaults are up 40% and sexual assaults are up 20%.
Across the pond, Great Britain passed a handgun ban in 1998. Ten years later, many British “bobbies” are armed for the first time because of the amount of illegal guns in the hands of criminals.
Have you read about gun bans resulting in more gun violence or seen it on the television news?
Do you think it’s newsworthy?
America, no matter what Obama, Biden, Pelosi, Reid and the rest of the far left in America say, they want your guns.
Seeking verifiable submissions. Email us your story or one you want PBN to be apprised of, and we will verify and may publish. We may invite you on a future broadcast.
Every day, those who live in the USA are afforded the opportunity to our free speech. But all too often, the liberal left abuse the limits to that rule and get away with it. We here at PBN have consulted with our legal department and have been compelled to share some truths about our rights we feel you should be apprised of.
On October 16, 2009 Legislative Attorney Henry Cohen prepared a document with the Congressional Research Service. The document, “Freedom of Speech and Press: Exceptions to the First Amendment” Yes exceptions.
Here is what we want to bring into the light for a Call to Action by all Patriots.
Below in bold, is an excerpt from the summary that speaks particularly into the area of today’s verbal climate, predominantly on the liberal side of the aisle. The Supreme court interprets our free speech laws that Congress has given us, based upon our founding documents, not to be Politically Correct, but to be Constitutionally correct and mindful of our freedoms within our Great Republic, the United States of America. Our Great Nation is not a capital “D” Democracy, if it were it would be “Mob Rule”. Without digressing into a University course on the Constitution, every legal citizen should understand that we are a Republic, not a Democracy. If you want to take a course, Hillsdale College offers one here. This is a 10 week course and all PBN staff and management have completed it.
“speech that constitutes advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
As you read you will notice how leftist Unions/ Government employees and contractors have continuously broken the law along with the MSM who have lost all credibility due to their obfuscation of truth and manipulation of data. Political correctness is the enemy of liberty and freedom, we have declared Political Correctness dead on PBN.
The First Amendment to the United States Constitution provides that “Congress shall make no
law … abridging the freedom of speech, or of the press.” This language restricts government both
more and less than it would if it were applied literally. It restricts government more in that it
applies not only to Congress, but to all branches of the federal government, and to all branches of
state and local government. It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First Amendment—of the ways
that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide
no protection or only limited protection for some types of speech. For example, the Court has
decided that the First Amendment provides no protection to obscenity, child pornography, or speech that constitutes “advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The Court has also decided that the First Amendment provides less than full protection to
commercial speech, defamation (libel and slander), speech that may be harmful to children,
speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys
the most extensive First Amendment protection may be subject to “regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.” Furthermore,
even speech that enjoys the most extensive First Amendment protection may be restricted on the
basis of its content if the restriction passes “strict scrutiny” (i.e., if the government shows that the
restriction serves “to promote a compelling interest” and is “the least restrictive means to further
the articulated interest”).
Here are some of what this document for Congress discusses:
Speech Harmful to Children
Children’s First Amendment Rights
Time, Place, and Manner Restrictions
Radio and Television
Freedom of Speech and Government Funding
Free Speech Rights of Government Employees and Government Contractors
WASHINGTON — Police in the U.S. capital say they are investigating an incident in which the host of a leading television interview program displayed what he described as a high-capacity ammunition magazine.
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives. That is if Sandy Berger didn’t stuff them in his shorts and socks.
As passed by the Congress:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As ratified by the States; authenticated by Thomas Jefferson, Secretary of State:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
in Brooklyn, New York ruled that various Roman Catholic entities in the New York area had legal standing to pursue their challenge to the so-called “HHS Mandate,” a series of federal regulations requiring virtually all employers to pay for their employees’ contraception, sterilization, and early abortion-inducing drugs. read more
The US Ambassador that was murdered in Libya was not graced with a team of security personal but Valerie Jarrett obama’s White House Senior Advisor has 24 hour, around the clock detail, with five or six agents full time.
The first person to make this known is democratic pollster Pat Caddell. The press has not mentioned a word about it. The media is too busy trying to get our treasonous president re-elected.
Why would Valerie Jarrett need full Secret Service secutity detail? Is she really the president and obama a stooge? Caddell said: “This country has reached the point of absurdity. There are people dead because we don’t have security details for them. But she’s privileged to have a full Secret Service detail on vacation?”
Here are other things you may not know about obama and Jarrett, (theblaze)
1. Obama’s chief of staff during the contraception mandate, Bill Daley, admits it was Jarrett who was behind the whole thing. He was also left out of the loop: read more
The Internal Revenue Service on Tuesday assured congressional lawmakers that agents would play no role in enforcing the controversial requirement that Americans buy insurance under President Barack Obama’s health care overhaul.
“IRS revenue agents will not be involved. There will not be audits,” IRS Deputy Commissioner Steven Miller told a subcommittee of the tax-writing Ways and Means Committee in the Republican-controlled House of Representatives.
The law, passed in 2010 and upheld by the Supreme Court, will charge individuals a fee, or tax, if they fail to buy insurance starting in 2014.
Opponents of the healthcare measure have focused on that requirement, with some Republicans saying they worry the IRS, the agency responsible for tax collection and tax law enforcement, will harass people who fail to buy insurance.
“In most cases, taxpayers will file their tax returns reporting their health insurance coverage, and-or making a payment, and there will be no need for further interactions with the IRS,” Miller said.
I wonder what happens if they don’t report their health coverage, or make a payment, just what will the IRS about it? Ignore it, I highly doubt it… read more